The U.S. Constitution, What is the best way to interpret it?

[OrangeEmpire]

How do you think the U.S. should be used and interpreted? Fixed, or flexible? According to 18th Century language, or 21st century language?

Here is a list of Constitutional philosophies to chose from: http://www.usconstitution.net/consttop_intr.html

Make your choice, and please state why you feel the way you do.


The Framers of the U.S. Constitution, or the people in 1787 which voted to ratify the cherished document, did not believe the text to be a "living Constitution" as those words are understood today. Furthermore, the Framers, Founders, and populace of 1787 did not believe the meaning of the words changed as society changed. Rather, they understood the words of the U.S. Constitution to be "fixed" and alterable only by an amendment. After all, it was a "contract" they were entering into. The meaning and words of a contract are "fixed" and do not change. The contract expressly provided for and proscribed a particular method for changing the meaning of the words in the U.S. Constitution and it did not include or mention the following methods.

An alteration of the meaning of the words by judicial decree or opinion nor an alteration of the meaning of the words by Congress or the Executive branch. The proscribed method for altering the U.S. Constitution is the amendment process. The goal of the contract, and the contract is the U.S. Constitution, is to, as Hamilton said,""The plan of the Convention declares that the power of Congress, or, in other words, of the National Legislature, shall extend to certain enumerated cases. This specification of particulars evidently excluded all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended."


What Hamilton is asserting here is, the government's power is enumerated in the U.S. Constitution, and Congress CANNOT exercise ANY power not granted to them, and ANY idea they were given a "general legislative authority" would be absurd and render useless the entire document which created the government.

I submit that the notion of a "living Constitution" and a "flexible document" is tantamount to what Hamilton called "general legislative authority and thus, condemnable as completely undermining the express purpose of the U.S. Constitution.

Chief Justice John Marshall said in his majority opinion in the case of McCulloch vs. Maryland, 17 U.S. 316, "This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.

The express purpose of the U.S. Constitution was to establish a strong national government of "limited powers." To limit the powers of the national government, the Framers/Founders sought to specifically enumerate those areas in which the federal government could operate, and those areas not mentioned were powers denied to them and reserved to the states.

As the 10th amendment asserts, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people. If Congress or the federal government was not vested with the power in the U.S. Constitution, then it is not a power for them to properly exercise, and specifically, it is a power reserved to the states. In 1787, this fundamental truth regarding the U.S. Constitution and the new government it created is what in part persuaded people to ratify the U.S. Constitution. The Framers, the Founders, and the populace of 1787 understood they were ratifying a government of limited power.

However, how as this power limited if the meaning of the words which operated to quarantine the power of the federal government were not fixed, defined, and limit in and of themselves? If the meaning of the words were not "fixed," but can be altered to include a more expansive meaning, then the very principle of limited government is eroded, in fact dead. The federal government's powers are no longer "fixed" and "definite" but undefined and innumberable, limited only by the human imagination to conjure up new meanings for pre-existing words, thereby expanding the power of the government.

This is the very anti-thesis of the U.S. Constitution, is completely contrary to the doctrine of limited government, constitutionalism, but is the contradictory result of glorious but logically doomed and failed attestation of "living constitution" and "flexible document."

George Washington asserted, "George Washington - "Towards the preservation of your government, it is requisite, that you resist with care the spirit of innovation upon its principles. One method of assault may be in effect alterations which will impair the energy of the system and thus undermine what cannot be directly overthrown."
Liberal Lie

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[OrangeEmpire]

Part II

The "spirit of innovation" Washington is denounce would include the innovative "living constitution" idea and "flexible document" principle. No need to seek an amendment to change the powers of the federal government, to expand or detract them, because we can merely alter the meaning of the words used in the document. Even if we have clear and convincing evidence the meaning of the word in 1787 would not or does not include the action of today, no problem, under the "living constitution" and "flexible document" principle, we can merely attach any new meaning, even if the new meaning is in complete contradiction to the meaning of the word in 1787. This is the type of "innovation" Washington was warning against.

As James Madison noted when discussing the constitutionality of the bank. "Can it be of less consequence that the meaning of a Constitution should be fixed and known, than that the meaning of a law should be so? Can, indeed, a law be fixed in its meaning and operation, unless the Constitution be so? On the contrary, if a particular legislature, differing, in the construction of the Constitution, from a series at preceding constructions, proceed to act on that difference; they not only introduce uncertainty and instability in the Constitution, but in the laws themselves; inasmuch as all laws preceding the new construction, and inconsistent with it, are not only annulled for the future, but virtually pronounced nullities from the beginning. Madison

Madison understood that the constitutional creation of "limited government" was predicated upon a fixed meaning of the U.S. Constitution.

As Jefferson said in a letter, "The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." --Thomas Jefferson to Spencer Roane, 1819.

that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance.

"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." --Thomas Jefferson to Wilson Nicholas, 1803.

The last quote is very revealing! A cherished "flexible document" theory and "living constitution" in which we can alter, change, and modify the meaning of the words in the U.S. Constitution without the use of amendment, renders the U.S. Constitution, as Jefferson said, a "blank paper by construction." Yes those theories ultimately make the U.S. Constitution a a blank paper by construction.

Jefferson went on to say, "The Constitution on which our Union rests, shall be administered by me [as President] according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption--a meaning to be found in the explanations of those who advocated, not those who opposed it, and who opposed it merely lest the construction should be applied which they denounced as possible." --Thomas Jefferson: Reply to Address, 1801.


Jefferson is applying a textualist/originalist approach to interpreting the U.S. Constitution. He is not relying upon or even espousing Richcelt's "living constitution" or "flexible" document theory. He specifically asserted, "according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption. There is nothing in Jefferson's words which indicate, suggest, infer, imply, or assume conjuring up any meaning we want for the words in the constitution. Jefferson is fixing the meaning of the words to the time of the ratification and adoption fo the U.S. Constitution.

Jefferson also said, ""I do then, with sincere zeal, wish an inviolable preservation of our present federal Constitution, according to the true sense in which it was adopted by the States, that in which it was advocated by its friends

Jefferson: "In every event, I would rather construe so narrowly as to oblige the nation to amend, and thus declare what powers they would agree to yield, than too broadly, and indeed, so broadly as to enable the executive and the Senate to do things which the Constitution forbids." --Thomas Jefferson: The Anas, 1793.


WOW!!!! Jefferson completely repudiates and denounces the "living constitution" and "flexible document" theory in this remark alone!

"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson to William Johnson, 1823.


The doctrine of "living constitution" and "flexible document" engages in the very type of interpretation denounced by Jefferson. Both attempt to "squeeze" out of the text and "INVENT" a meaning "against IT," IT being the U.S. Constitution.

This was a view espoused by James Madison when he unsuccessfully argued against legislation creating a national bank. Madison said, and I paraphrase, "The proper understanding of the U.S. Constitution is to adhere to the meaning which was discussed in the state ratifying conventions and by the people of the states which so ratified."

Why did Jefferson, Madison, Marshall, Hamilton, and undoubtedly other Framers/Founders argue so vociferously for limiting the meaning and understanding of the U.S. Constitution to the time it was ratified? Because they understood this approach was necessary to accomplish the constitutions goal of creating a government of LIMITED powers.

 

[hatvol96]

There has to be some accomodation for the societal, geographical, and technological changes that have taken place since the Constitution was written. "A man cannot wear a boy's coat." Gore Vidal

 

[volinbham]

Of the options, the originalist fits my view the best. Since we have the option of amending (as proscribed in the Constitution) I feel that should be the mechanism by which the Constitution adapts to changes with societal, technological and geographic changes.